The police are called to a domestic violence call at a private residence. The person who called meets the officer at the door and says everything is okay and that they don’t need any help: “Nothing happened. I was just mad and called you to get back at my boyfriend for yelling at me. Thank you for coming, but everything is fine and you can leave now.”
Shouldn’t The Officer Just Leave?
No. In fact, they are not allowed to simply leave. When a call of this nature is made, the police have a community care taking obligation to investigate, check for signs of altercation and ensure that the parties are safe. In Seattle, the officer actually has the obligation to separate the two parties by taking one of the parties into custody. It is not necessarily even going to be the person who called the police, it could be the other, but either way, someone is almost always going to be taken into custody and arrested at this point.
I Don’t Want to Press Charges. Now Shouldn’t The Case Just Go Away?
While it may seem surprising, it is just not that simple. In fact, the alleged victim’s desires with regard to the prosecution of the now defendant has only minimal influence on how the case will be handled by the prosecution. A COMMON MISCONCEPTION IS THAT A PERSON HAS A CHOICE WHETHER CHARGES ARE PRESSED AGAINST ANOTHER PERSON OR NOT.
After the arrest and booking into jail of the person that was taken into custody, the officer will write a report. This report will be based on the investigation that they did prior to taking the person into custody and any comments made by that person while in custody (please see my “Don’t Talk To The Police” article). After this is completed, the report will be filed with the prosecutor’s office.
It is then SOLELY UP TO THE PROSECUTOR TO FILE FORMAL CHARGES AGAINST THE DEFENDANT OR NOT.
Usually the prosecutor will simply look at the police report and make a decision based on that alone. After the case has been filed they will usually use what is called a “victim’s advocate” to communicate with the alleged victim in the case. Whatever is reported to this advocate is sent to the prosecutor to help guide the case. The person may even say that there was no physical abuse or that they don’t want to prosecute the defendant, but that doesn’t mean that the case won’t proceed.
The prosecution will move forward based on what they feel they can prove or not prove, not primarily on the desires of the alleged victim involved. If they feel that they have enough evidence to convict the defendant of the charge, then they almost always pursue that end. Yes, it makes it more difficult for them to get a conviction in a case if the alleged victim isn’t there to help them with testimony at trial, but that certainly does not mean that the case will simply be dismissed.
I’m The Victim Here. Why Won’t They Just Listen To What I Want?
A large part of prosecution’s job is to do what it thinks is best to protect the community by keeping what it believes to be criminals off the streets. While I would never purport myself to be an expert by any stretch of the imagination on domestic violence, I know that in this realm a lot of the time people just simply don’t want their spouse to get in trouble. This is whether it is good or safe for them or not. Many times this might not be the first time something like this has happened, just the first time they called the police. Also, there is a power struggle involved. Most victims of domestic violence are in a position of weakness, duress, and under the influence of their partner. They can’t protect themselves.
Similarly, when a case like this is filed, THERE IS ALMOST ALWAYS A NO-CONTACT ORDER PUT IN PLACE BY THE JUDGE at the very beginning of the case. This order is designed to protect the alleged victim while the case is pending.
These orders are almost never lifted until the case is either dismissed or some other resolution has been reached. Sometimes things like treatment or a domestic violence evaluation are required. A judge will usually not agree to lift an order like this until they are either required to do so because they no longer have jurisdiction over the defendant (i.e. a case dismissal or an acquittal after trial), or until they feel assurances have been put in place to ensure that the defendant no longer poses a threat.
So After All This What Is Going to Happen?
Each case is completely different. As the attorney for the defendant in the above described case, I would treat it VERY carefully. I have represented many people in cases similar to the above example. Sometimes we never know what actually took place prior to the phone call being made to the police.
What I can tell you is that domestic violence cases are unlike any other.
Yes, I am going to do everything in my power to protect my client. I am not going let them give a statement to the police and I am going to advise them not to say anything to anyone about the the case without me being present. The case is going to come down to what the powers that be feel can be proved or not proved. I am going to ensure that the prosecutor handles this case fairly and that my client’s rights are protected. I am certainly going to fight for my client using all of the tools that I possess.
However, it is my duty to do this in a fashion that is extremely cognizant for the safety of all of the people involved in the case – this means my client, as well as the alleged victim and their family.
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Stryder J. Wegener is the author of this article, the co-founder of Emerald City Law Group, and a damn good criminal defense attorney.